Constitutional Law Flashcards
Eleventh Amendment
Prohibits citizens of one state from suing another state in federal court for money damages and equitable relief
Bars suits in federal court against state officials for violating state law
Adequate and independent state grounds
Supreme Court cannot review a state court judgment if it rested on AISG (i.e., did not turn on federal grounds)
- Adequate = state law controls
- Independent = state law does not depend on an interpretation of federal law
Standing
Injury + causation + redressability
- Injury – concrete, not necessarily economic
- Causation – D’s act must have caused or will cause the injury
- Redressability – court can remedy injury
Government allocations – standing to challenge
Federal taxpayers have no standing to challenge government allocations
- Exception – challenge to government expenditures as violating the Establishment Clause
Timeliness
Ripeness + mootness
- Ripeness – concerns prematurity of case; must show actual or immediate threat of harm
- Mootness – dismissed when no longer live controversy
a. Exception – cases capable of repetition yet evading review
Political questions
Non-justiciable question; court will not decide because there are no manageable standards for judicial decision-making
- Guaranty Clause
- Foreign affairs
- Impeachment procedures
- Political gerrymandering
Commerce Power
Almost anything can be regulated as interstate commerce
- Can regulate the channels and instrumentalities
- Intrastate activity that has a substantial effect on interstate commerce
Taxing Clause
Tax must be rationally related to raising revenue
Spending Power
Includes spending for general welfare
- Can use to accomplish things it could not under the Commerce Clause (e.g., federal funds conditional on raising the drinking age)
Anti-commandeering
Congress cannot force states to adopt or enforce regulatory programs and cannot commandeer state and local officials to carry them out
Congress’s power over aliens and citizenship
Plenary power – subject to DP Clause
Thirteenth Amendment
Congress has broad power to legislate against racial discrimination, whether public or private
Fourteenth Amendment
Congress has the power to remedy violations of individual rights by government, but only as those rights have been defined by the courts
- Need congruence and proportionality (i.e., reasonable fit between remedial law and constitutional right)
Fifteenth Amendment
Congress has the power to ensure no racial discrimination in voting
President’s domestic powers
Generally subject to control by statute
Exceptions
- Pardon power (for all federal offenses)
- Veto power – 10 days; no line-item veto
- Appointment and removal of executive officers
Impeachment
- Applies to executive officers
- Accusation of high crimes and misdemeanors requiring majority vote of House
- Trial in Senate; conviction requires two-thirds vote
- Remedy is removal from office
Impoundment
If state gives President discretion to spend or withhold funds, he may do so, but when a statute requires funds to be spent, President cannot refuse to do so
Legislative veto
Congress cannot pass law reserving to itself the right to disapprove future executive actions by simple resolution
Delegation of powers
Congress can delegate its power to administrative agencies so long as there are intelligible standards governing the exercise of delegated power
Immunities –president
- Absolute immunity for official acts
- No immunity for acts before office
- Executive privilege not to reveal confidential communication with advisers but can be outweighed by specifically demonstrated need in criminal prosecution
Immunities –judges
Absolute immunity for all judicial acts
Immunities – legislators
- Speech or Debate Clause – protects federal legislators for speech or writings made in connection with their official acts
Intergovernmental immunities
- Federal government is immune from direct state regulation or taxation
- States are not immune from direct federal regulation
Privileges and immunities of State Citizenship Under Article IV (Comity Clause)
Forbids serious discrimination against out-of-state individuals absent substantial justification
- Non-serious – states can discriminate with regard to recreational opportunities
Dormant Commerce Clause
In absence of federal regulation, state regulation of interstate commerce is valid so long as
- There is no discrimination against out-of-state interests
- Regulation does not unduly burden interstate commerce; and
- Regulation does not apply to wholly extraterritorial activity
Applies to both businesses and individuals
Exceptions
- State as market participant (buying/selling)
- Subsidies
- Federal approval (i.e., OK even if it discriminates)
State taxation of interstate commerce
Non-discriminatory taxation is valid if
- There is a substantial nexus between taxing state and property or activity to be taxed
- Fair apportionment of tax L among states
- No local direct commercial advantage over interstate competitors
- Tax must be fairly related to services provided by filing state
Ad valorem tax
Two kinds of value-based property taxes
- Commodities – all within borders on specific date (tax day), not goods that are merely in transit
- Instrumentalities – transportation commitment that moves commodities; need sufficient contact + fair apportionment
Preemption
Federal law preempts inconsistent or incompatible state law
- Preempting the field – when Congress determines that there should be no state law of any sort in particular field, then any state law in that area is preempted
Full Faith and Credit Clause
States do not have to follow other states’ laws, but they do have to give full faith and credit to judgments rendered by other states, so long as rendering court had jurisdiction, was on merits, and was final judgment
State action
Fourteenth Amendment requires state action, which means government action, whether state or local
- Government cannot be significantly involved in private discrimination
- Cannot facilitate, profit from, or enforce
- If anti-discrimination statute, then state action is irrelevant
Procedural due process
Ask
- Is life, liberty, or property being taken?
- If so, what process is due?
- Deprivation – requires intentional taking away
Property interest
Have in government job or benefit whenever have a legitimate entitlement to continued employment
- Entitlements only when government says so, such as by providing term of discharge only “for cause”
Process
To decide what kind of process is due, courts balance three factors
- Individual interest at stake
- Value of procedure in; protecting that interest; and
- Government interest in efficiency and cost
Sometimes, hearing must occur before deprivation (welfare benefits, real property, public employees who can only be fired “for cause”), and sometimes can occur after as long as hearing is prompt and fair
Substantive due process – standards of review
- Strict scrutiny
- Intermediate scrutiny
- Rational basis
Strict scrutiny
Law is necessary for compelling government interest
- Least restrictive means
- Government bears the burden of proof
- Applies when there is a suspect classification or fundamental right
Intermediate scrutiny
Law is substantially related to an important government interest
- Applies when there is a classification based on legitimacy or gender
Rational basis scrutiny
Law is relationally related to legitimate interest
- Challenger bears the burden of proof
- Applies to all other cases
Fundamental rights (SS)
- Travel – interstate
- Reasonable residency requirements for political participation and government benefits OK - Voting and ballot access
- Can impose requirements for candidates to be listed on ballot, as long as serious candidates can reasonably comply - Privacy
- Marriage, contraception, sexual intimacy
- Abortion – until viability; after, state can impose reasonable restrictions that do not impose an undue burden on right to terminate - Parental rights
- Family relations – to live together
- Obscene material – to read in home but not to purchase, sell, import, or distribute
- Refusal of medical treatment – unclear
Equal protection – standards of review
Same as for substantive DP (i.e., strict scrutiny, intermediate scrutiny, and rational basis)
Suspect classifications (SS)
- Race, ethnicity, or national origin
- Discriminatory purpose is required (not enough to show disproportionate impact)
- Affirmative action – valid when it specifically corrects past discrimination by specific department or agency now engaged in AA - Alienage (requirement of U.S. citizenship)
- Exceptions
a. Federal government – Congress has plenary power
b. State and local – non-citizens can be barred from jobs that have particular relevance to role of government
Quasi-suspect classifications (IS)
- Gender classifications are almost always invalid
2. Legitimacy laws are almost always invalid, especially if punitive in nature
Non-suspect classifications (RB)
- Age discrimination in employment is married by statute, but not suspect or quasi-suspect
- Wealth not suspect or quasi-suspect, but government has to waive filing for indigent when charing fees would deny a fundamental right
- Sexual orientation – Court has hinted that classifications based on SO would only be subject to RB
Racial gerrymandering
When districts are diluted to scatter minorities with discriminatory purpose, it’s unconstitutional
- VRA requires RG to ensure minority success by creating majority-minority districts
- Race may be factor but not predominant or only factor
Takings
Property shall not be taken for public use without just compensation
- Public use = anything rationally related to a conceivable public purpose
- Just compensation = FMV at the time of the taking
Key question is physical occupation (not adverse economic impact)
Zoning
Not a taking and no compensation required so long as zoning advances legitimate interests and does not extinguish fundamental attribute of ownership
Regulatory taking
Zoning regulation can be considered a taking when it leaves no economically viable use for the property; consider
- Economic impact on the property owner
- Extent to which the regulation interferences with the owner’s reasonable, investment-backed expectations regarding use of the property
- Character of the regulation
Developer permits
Development often conditions on concessions by developer, which are valid so long as they can be seen as offsetting adverse impact of development; consider
- Essential nexus between legitimate state interests and conditions imposed
- Rough proportionality between burden imposed and impact of proposed development
Bill of attainder
Unconstitutional to have legislative punishment imposed without judicial trial
Ex-post facto laws
Unconstitutional to expand criminal L retroactively either by creating a new crime that applies retroactively to past conduct or by increasing the penalty for past conduct
Contracts Clause
Bars states from legislative impairment of existing Ks, unless there is overriding need
Establishment Clause
Lemon test –in determining whether a law is valid, ask
- Does the law have a secular purpose?
- Does the law have a primary effect that neither advances nor inhibits religion?
- Does the law avoid excessive government entanglement with religion?
Endorsement – violation for government to endorse one law over another and also to endorse religion over non-religion
Free exercise
Religious belief – protected absolutely
Religious conduct – protected qualifiedly
- Neutral, generally applicable laws can be enforced despite religious objections
- Exception –ministers and employment laws
Regulation of expressive conduct (SS)
Laws regulating expressive content are upheld if
- Further important interest;
- Interest is unrelated to the suppression of expression; and
- Burden on expression is no greater than necessary
Vagueness
Vague laws are ones that give no clear notice of what is prohibited and thus violate DP
Overbreadth
Overbroad laws are ones that go too far in regulating speech
- Law burdens substantially more speech than is necessary to protect a compelling interest
Regulation of time/place/manner of expression
Public forum – three requirements
- Must be content-neutral;
- Must leave open alternative channels of communication; and
- Must be narrowly tailored to serve a significant state interest
Non-public forum (e.g., government office) – any reasonable, viewpoint-neutral regulation of speech will be upheld
Limited public forum (not traditionally a public forum but government opens to all comers) – only time/place/manner restrictions are allowed
Obscenity
- Must be erotic
- Must be patently offensive to the average person in society
- Must be defined by proper standards for determining what is obscene
- Must lack serious value
Incitement
Speech is not protected if it is incitement to immediate violence
Fighting words
Words likely to prove immediate breach of peace
- Must be aimed/targeted at someone
- General vulgarity is NOT enough
Defamation
False statements of fact damaging to a person’s reputation can be prohibited
- Public officials/figures – actual malice (knowing or reckless falsity(
- Private individuals – negligence falsity
Commercial speech
Most regulations are struck down; as long as advertising is truthful and informational, it must be allowed
Government speech
First Amendment restrictions basically do not apply to government as speaker; free to express point of view
Regulation of media
First Amendment shields median from liability for publishing information that was obtained illegally by third party as long as information involves matter of public concern and publisher neither obtained it unlawfully nor knows who did
Speech by government employees
Government employees cannot be hired or fired based on political party, political philosophy, or any act of expression (e.g., if they’re speaking as a citizen on a matter of public concern)
Campaign contributions
Can be regulated, provided that limits are not unreasonably low
- Subject to IS – must be “closely drawn” to correspond with sufficiently important interest
Campaign expenditures
Direct expenditures cannot be regulated
- Coordinated expenditures are disguised contributions and can be regulated as contributions
